69 Conn. 503 | Conn. | 1897
The undisputed facts do not necessarily establish a valid contract of insurance between the defendant and Ellen K. Cannon. It is not enough for such purpose that the defendant signed a policy of insurance in pursuance of Mrs. Cannon’s application, and tendered it to her. The testimony tends to prove, if it does not clearly show, that after signing the application Mrs. Cannon changed her mind; that she refused to accept the policy when tendered, and never received it; that neither she nor the beneficiary named in the policy paid the first premium or any premium, or authorized payment of the same. In such a state of evidence it would be error in the court to hold that the undisputed facts, viz: the signing of an application, with the execution and tender of the policy, necessarily prove a completed contract of insurance between the defendant and Mrs. Cannon. Rogers v. Charter Oak Life Ins. Co., 41 Conn. 97; Whiting, Admr., v. Mass. Mutual Life Ins. Co., 129 Mass. 240. This question is not definitely passed upon in the charge.
The court, however, couples the facts of the application, the execution of the policy and the tender, with other undisputed facts, viz: that the plaintiff paid the premiums up to the time she attempted to surrender the policy; that two or three years prior to such attempted surrender she wrote the defendant that she held the policy on Mrs. Cannon’s life, telling how she claimed to have come by it and offering to surrender it on return of the premiums paid, if the transactions were not straightforward; that the defendant received this letter and thereafter continued to receive premiums from the plaintiff on account of the policy,—and thereupon the court tells the jury that “ these facts being proved and uncontradieted, the defendant was bound by the policy, and the plaintiff, though she acted in entire good faith in taking the policy and in advancing the premiums, which the defendant denies, cannot recover in this action.”
If this statement of the law applicable to the facts recited,
We cannot consider whether the evidence on the question really tried to the jury, i. e., the good faith of the plaintiff, is so conclusive that the plaintiff cannot be said to have been injured by the error in the charge. The conclusion is one to be drawn from conflicting testimony, and one of fact, which the jury were not permitted to pass upon. The control a trial court may properly exercise is very large, both before and
Upon the testimony reported, the jury might be justified in finding that the payments were in fact and intention made by the plaintiff in the execution of a wagering contract on the life of Mrs. Cannon, which the law holds to be both immoral and illegal. The charge does not state the law applicable to such a state of facts, either in respect to the effect of an honest belief on the part of the plaintiff, induced by the defendant, that the transaction was legal, or as to the position of the payments while held by the defendant pending the termination of the life which is the subject of the wager; in the view taken by the court this was unnecessary. So these questions, while evidently in the case, are not presented by this record.
There is error in the judgment of the Superior Court, and a new trial is granted.
In this opinion the other judges concurred.